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State v. Dawson

Court of Appeals of Ohio, Ninth District, Summit

May 17, 2017

STATE OF OHIO Appellee
v.
THOMAS DAWSON Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 12 3878

          HENRY HILLOW and WALTER H. EDWARDS, JR., Attorneys at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          TEODOSIO, Judge.

         {¶1} Defendant-Appellant, Thomas Dawson, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} On December 14, 2015, Mr. Dawson checked into a hotel in Fairlawn. That evening, he took one of his prescription sleeping pills before heading to the hotel bar to order dinner. In addition to ordering a meal, Mr. Dawson ordered and drank three double shots of Crown Royal within approximately one hour. He paid his bill at 8:32 p.m. and then left the bar.

         {¶3} The hotel where Mr. Dawson was staying is connected to Hyde Park Grille, a fine dining steakhouse that also has a bar area. Sometime between 9:30 p.m. and 9:45 p.m., Mr. Dawson entered the restaurant and sat down at the bar. He had in his hand a plastic bag containing a bottle of water. While at the bar, Mr. Dawson attempted to order a Crown Royal, but the bartender determined that he was intoxicated and refused to serve him. The bartender specified that Mr. Dawson's speech was slurred and that he was saying things that did not make sense. He, therefore, decided to call his manager so that they could ask Mr. Dawson to leave the restaurant. The manager arrived shortly thereafter and learned that Mr. Dawson was a guest at the adjoining hotel. After verifying that Mr. Dawson was, in fact, a guest at the hotel, he offered assistance to help Mr. Dawson to his room. Mr. Dawson, however, declined the offer. A short while later, he removed the water bottle from his plastic bag, placed the bag on his head, and walked out of the restaurant. Before closing the restaurant, the manager warned the bartender at the adjoining hotel not to serve Mr. Dawson.

         {¶4} At some point close to 11:00 p.m., Mr. Dawson returned to the bar at his hotel and attempted to order a Crown Royal. Remembering the caution she had received from the manager at Hyde Park Grille, the bartender informed Mr. Dawson that the bar was closed. Mr. Dawson then left the bar area.

         {¶5} Between 11:10 p.m. and 11:15 p.m., the manager at Hyde Park Grille closed the restaurant for the evening, set the alarms, and left immediately thereafter. At 11:18 p.m., someone triggered the front door alarm. Multiple motion sensors were then triggered inside the restaurant during the next few minutes. The police arrived at 11:31 p.m. and discovered that someone had used a large planter to break a glass panel in the restaurant's front door. The door itself was partially opened and shattered glass covered the entryway. As the police went inside, they smelled smoke throughout the restaurant and discovered that someone had turned on the burners in the kitchen, causing the pans on top to heat up and burn the grease inside them. They also discovered that someone had broken glasses, torn down a large partition, destroyed several pieces of crown molding, ripped wiring out of the wall, and caused other damage. After a few minutes of searching, they discovered Mr. Dawson wandering around inside the kitchen area of the restaurant. At the time, Mr. Dawson was shirtless and carrying a plastic bag that contained a receipt from a nearby gas station. The police later found his discarded sweatshirt at the gas station.

         {¶6} Mr. Dawson told the police that he had been inside the restaurant for about 15 to 20 minutes. The police found that Mr. Dawson was having difficulty coordinating his thoughts and seemed confused. After learning he was diabetic, they called the paramedics, and Mr. Dawson was taken to the hospital. A detective interviewed him the following morning, at which point Mr. Dawson admitted that he had used a planter to break the glass in the door at Hyde Park Grille. He also admitted that he had pulled down a picture frame after he went inside. Mr. Dawson claimed that he could not remember what happened after he went inside, but denied that he had caused all of the damage inside the restaurant. He told the police that he had felt compelled to enter the restaurant because he heard a commotion inside or, possibly, a woman yelling.

         {¶7} A grand jury indicted Mr. Dawson on two counts of breaking and entering, two counts of vandalism, and one count of criminal damaging. Before trial, the court dismissed one count of breaking and entering and one count of vandalism at the State's request. The jury then heard the remaining three counts and found Mr. Dawson guilty. With regard to his vandalism count, the jury found that the value of the property destroyed or involved did not exceed $7, 500. The trial court sentenced Mr. Dawson to a total of nine months in prison on his three counts. Additionally, it ordered him to pay Hyde Park Grille $7, 499 in restitution.

         {¶8} Mr. Dawson now appeals from his convictions and raises eight assignments of error for our review. For ease of analysis, we rearrange and consolidate several of the assignments of error.

         II.

ASSIGNMENT OF ERROR ONE

TRIAL COUNSEL WAS INEFFECTIVE WHERE COUNSEL FAILED TO REFER MR. DAWSON FOR PARTICIPATION IN THE INTERVENTION IN LIEU PROGRAM.

         {¶9} In his first assignment of error, Mr. Dawson argues that he received ineffective assistance of counsel because his counsel failed to request on his behalf intervention in lieu of conviction ("ILC"). We do not agree that Mr. Dawson has established ineffective assistance of counsel.

         {¶10} To prove ineffective assistance of counsel, Mr. Dawson must establish that (1) his counsel's performance was deficient, and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, he must prove that "there exists a reasonable probability that, were it not for counsel's [deficient performance], the result of the trial would have been different." State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. This Court need not address both prongs of Strickland if Mr. Dawson fails to prove either one. State v. Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.

         {¶11} "ILC is a statutory creation that allows a trial court to stay a criminal proceeding and order an offender to a period of rehabilitation if the court has reason to believe that drug or alcohol usage was a factor leading to the offense." State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, ¶ 9, citing R.C. 2951.041(A)(1). "R.C. 2951.041(B) lists the criteria that a criminal defendant must meet to be eligible for ILC. 'If an offender satisfies all of the statutory eligibility requirements for intervention, the trial court has discretion to determine whether a particular offender is a good candidate for intervention.'" Massien at ¶ 11, quoting State v. Geraci, 10th Dist. Franklin No. 04AP-26, 2004-Ohio-6128, ¶ 5. Because the ILC statute "is permissive in nature [it] confers substantial discretion to the trial court to grant a defendant's request * * *." State v. Bellman, 9th Dist. Lorain No. 15CA010525, 2015-Ohio-2303, ¶ 10.

         {¶12} According to Mr. Dawson, his trial counsel was ineffective because he failed to understand that he could seek ILC on Mr. Dawson's behalf without the State's consent. Mr. Dawson argues that the State made ILC a part of its initial plea offer, but that offer was contingent upon his paying an excessive amount of restitution that he could not afford. He argues that he was prejudiced when defense counsel failed to request ILC on his behalf, regardless of the State's offer. He asserts that, had his counsel done so, he would be in a treatment program rather than serving the harsher penalty that the trial court ultimately imposed.

         {¶13} Even if defense counsel had requested ILC on Mr. Dawson's behalf, it is entirely unclear from the record that the court ultimately would have granted his request. R.C. 2951.041(B) contains ten different eligibility requirements for ILC. Mr. Dawson, however, has not discussed the applicability of any of the ten eligibility factors. See App.R. 16(A)(7). Nor has he addressed the matter of the trial court's substantial discretion in light of certain statements that the court made at the sentencing hearing. See Bellman at ¶ 10

         {¶14} At the sentencing hearing, defense counsel strongly argued for community control and a suspended sentence. Several individuals also came forward to speak on Mr. Dawson's behalf. The court listened to the arguments for lenity, but then broached the subject of Mr. Dawson's presentence investigation report.[1] The court expressed its concern with his prior criminal history, which included convictions for OVI in Ohio in 2006, public alcohol intoxication in Kentucky in 2009, disorderly conduct in Michigan in 2014, and OVI in Indiana in 2015. Likewise, the court expressed its concern that Mr. Dawson had refused an offer to resolve his 2015 case through a drug court in Indiana.[2] The court noted that the property damage Mr. Dawson had caused was extensive. Due to the seriousness of his crime and his history of recidivism, the court determined that a community control sentence would demean the seriousness of his crimes. As such, it sentenced him to a prison term and ordered him to pay restitution.

         {¶15} As this Court has repeatedly recognized, "[s]peculation regarding the prejudicial effects of counsel's performance will not establish ineffective assistance of counsel." State v. Buzek, 9th Dist. Medina No. 14CA0011-M, 2015-Ohio-4416, ¶ 7, quoting State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4. Mr. Dawson has made no attempt to explain why he met each of R.C. 2951.041(B)'s eligibility requirements or why, in light of the foregoing concerns, the trial court nonetheless would have concluded that he was "'a good candidate for intervention.'" Massien at ¶ 11, quoting Geraci at ¶ 5. See also State v. Jones, 6th Dist. Wood No. WD-12-053, 2013-Ohio-3562, ¶ 22. This Court will not construct an argument on his behalf. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) ("If an argument exists that can support this assignment of error, it is not this [C]ourt's duty to root it out."). Because Mr. Dawson's argument is purely speculative, he has not established that he received ineffective assistance of counsel due to his counsel's failure to request ILC independently of the State's plea offer. See State v. Dohme, 2d Dist. Clark No. 2016-CA-42, 2017-Ohio-561, ¶ 14-20. His first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT ERRED IN NOT ALLOWING THE APPELLANT TO ADMIT EXCULPATORY EVIDENCE THAT PLACED HIM IN ANOTHER LOCATION AT ...


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